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The Privacy Gap

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Two recent events underscore how advances in technology create new threats to the government, and, at the same time, increase the government’s capacity to intrude into the private lives of its citizens: First, a secretive branch of the Chinese military conducted cyber-attacks on the nation’s largest media companies, including the New York Times and the Washington Post. Second, citing the threat of terrorism, the Justice Department secretly obtained two months of telephone records of reporters and editors for the Associated Press, and, under a top-secret court order, collected the phone records of millions of Verizon customers in the United States.

Our society faces novel questions: How can basic privacy principles be applied to internet search engines that, by their very nature, gather information automatically without our consent for unknown future purposes? When anyone with a mobile phone and access to social media can be considered a “journalist,” how should we understand “freedom of the press”? And, perhaps most chilling—how long before we’ll be asked to submit to a DNA swab before we can board a plane, work for the government, join the high school basketball team or drive a car?

Thomas Jefferson presaged our current predicament when he observed: “Laws and institutions must go hand in hand with the progress of the human mind…As new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

In today’s technological environment, can our government guard both national security and the privacy of its citizens? On the one hand, governmental power must be commensurate with the power of the external forces that threaten it. Otherwise its survival is at risk. Predictably, therefore, the government tends to give “interests of state” priority over the interests of the individuals on whose behalf it governs.

If that is so, who guards the guardians? In our system it is the law, particularly our foundational law, the Constitution, that limits governmental power. Heeding Jefferson, the law seeks to “keep pace with the times” by adapting past rules to contemporary disputes. Reasoning by analogy, prior rulings are extended to novel circumstances. For example, DNA swabs are akin to fingerprints; the internet is similar to broadcast media.

In practice, however, the law always lags behind technology. Four types of problems arise as the law struggles to keep pace with technological change: The need for laws to ban, restrict, or encourage a new technology; uncertainty in applying existing legal rules to new practices; the danger of over-inclusiveness or under-inclusiveness of existing legal rules as applied to new practices; and the potential obsolescence of existing legal rules. The gap between our rapidly changing technological environment and our capacity to create laws continues to widen.

In responding to these challenges, leadership and learning are indispensable to each other. Today’s young people must inform themselves about these issues, since they must face them as citizens. This illustrates why our students must learn to think carefully about political issues affecting society—to examine, reflect, argue and debate, deferring to neither tradition nor authority. They must be ready to consider how individual privacy and national security relate to the common good. And they need to see our nation as part of a complicated world in which technology, security and privacy require intelligent transnational deliberation. For the sake of our democracy, a Saint Mary’s education must strengthen our graduates’ capacity to participate in the deliberations of civic life.

To conclude, let me return to Thomas Jefferson: “I know of no safe repository for the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to increase their discretion by education.”

-Steve Woolpert

Woolpert is a professor in the Department of Politics and has served as the dean of the School of Liberal Arts since 2004.